Opinion
Case Number 02-10281-BC.
December 16, 2002
ORDER DENYING DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S OBJECTIONS TO REMOVAL AND GRANTING PLAINTIFF'S MOTION TO REMAND
Defendants Joint Construction Code Authority, Township of Deerfield, Township of Nottawa, Township of Rowland, James Chaney, Kenneth Kopke, James Faber, Shirlee VanBonn, Richard VanHorn, Darrell Metcalf, and Dan Shaw filed a notice of removal on November 1, 2002, invoking this Court's federal question jurisdiction, see 28 U.S.C. § 1331, 1441(b), 1446, to bring this case here from the Isabella County, Michigan Circuit Court. On November 12, 2002, defendants Township of Sherman and Township of Deerfield joined in the removal notice. Defendants Craig and Kim Cranmer have not joined in the notice of removal. On November 14, 2002, the plaintiff filed a document styled as "Objections to Notice of Filing Removal," a pleading, at least by its title, that is unknown to Federal Rules of Civil Procedure or the Judiciary Act. However, by its content, the document seeks a remand of the case to the Michigan court from whence it came.
The removing defendants have filed a "Motion to Strike" the plaintiff's "objections" to the removal, observing that the Federal Rules of Civil Procedure do not permit such objections. In order to untangle the procedural knot that is developing, and for reasons explained below, the Court will construe the "objections" as a motion to remand, the defendants' motion to strike will be treated as a response to that motion, and the motion to remand will be granted, not because the state court has concurrent jurisdiction over the plaintiff's federal claim, as the plaintiff observes, but because all of the defendants have not joined in the removal notice.
I.
The plaintiff filed his first complaint in this case in the Isabella County Circuit Court on or about September 10, 2002 against defendants Joint Construction Code Authority, Township of Deerfield, Township of Nottawa, Township of Freemont, Township of Sherman, Township of Rolland, James Chaney, Kenneth Kopke, James Faber, Shirlee VanBonn, Richard VanHorn, Darrell Metcalf, Dan Shaw, and Craig and Kim Cranmer. The original complaint raised purely state-law claims.
On October 23, 2002, however, the plaintiff filed a First Amended Complaint that added a claim under 42 U.S.C. § 1983 for a violation of the plaintiff's rights under the Equal Protection Clause of the Fourteenth Amendment. The defendants allege, and the plaintiff does not deny, that the removing defendants properly filed their Notice of Removal within thirty days of service of the First Amended Complaint.
Subsequently, the removing defendants and the plaintiff filed responses to this Court's Standing Order Regarding Submission of Information Regarding Removal in which they offer explanations for the failure of all the defendants, specifically defendants Craig and Kim Cranmer, to join in the removal notice. The defendants contend that the Cranmers, "when contacted for concurrence, [were] not able to commit at that time due to monetary constraints" and that "the Cranmers and the Plaintiff are involved in settlement negotiations." Defendants' Submission of Information Regarding Removal ¶ 1. The plaintiff explains, however, that he is being sued in state court by the Cranmers, who have offered to dismiss their case against the plaintiff in exchange for a dismissal of them from the present action, an offer the plaintiff has refused because the Cranmers are necessary parties in this matter. The plaintiff insists that there "have been and are no settlement negotiations with any Defendant in this matter."
II.
The bases for the plaintiff's objections to removal are that (1) state courts have concurrent jurisdiction over § 1983 claims; (2) there is no federal question raised by the § 1983 claim; and (3) "the balance of Plaintiff's First Amended Complaint does not invoke this Court's jurisdiction." Pl.'s Objs. at 2. In their Motion to Strike, the defendants assert that claims arising under § 1983 certainly raise a federal question, that the concurrent jurisdiction of state courts over these claims is irrelevant to the defendants' right to remove them, and that the objections in any event should be stricken because the Federal Rules do not provide for the filing of "objections" to a Notice of Removal.
As to the procedural issue, the defendants' argument amounts to little more than procedural nit-picking. The thrust of a motion is indicated by its substance and requested relief, not its title.
The Federal Rules in fact provide for neither objections of this type nor a motion to remand; instead, the motion to remand is established by 28 U.S.C. § 1447(c), a provision of which not all practitioners, especially those not accustomed to practicing in this Court, are aware. It is well-established in any event that a request to remand a case to state court, however inaptly titled, can be properly construed as a motion to remand. See Hall v. Travelers Ins. Co., 691 F. Supp. 1406, 1407-08 (N.D.Ga. 1988) (so construing plaintiff's "response to defendant's petition for removal"); Williams v. Williams, 427 F. Supp. 557, 558 n. 1 (D.Md. 1976) (construing as motion for remand a "motion for dismissal of petition for removal").
The plaintiff's initial assertions lack legal support on the merits. The existence of concurrent jurisdiction over § 1983 claims does not preclude removal. Aben v. Dallwig, 665 F. Supp. 523, 525 (E.D.Mich. 1987) (noting that removal is permitted unless the statute under which the cause of action arises explicitly precludes removal). Furthermore, the invocation of § 1983 to enforce a right under the Equal Protection Clause of the Fourteenth Amendment plainly provides a federal question over which this Court has original jurisdiction. See Berger v. City of Mayfield Heights, 265 F.3d 399, 405 (6th Cir. 2001). Finally, contrary to the plaintiff's (unsupported) assertions, the presence or even predominance of state-law claims accompanying a § 1983 claim in a complaint does not provide a basis for remand. See Majeske v. Bay City Bd. of Educ., 177 F. Supp.2d 666, 671-73 (E.D.Mich. 2001).
However, the removal effort is defective for another reason. The procedure for removal under 28 U.S.C. § 1446 requires the "defendant or defendants desiring to remove a civil action . . . [to] file . . . a notice of removal." Thus, when there are multiple defendants, all must timely join in the removal. Chicago, Rock Island and Pacific Ry. v. Martin, 178 U.S. 245, 248 (1900); Mehney-Egan v. Mendoza, 124 F. Supp.2d 467, 471 (E.D.Mich. 2000). Passive acquiescence is not sufficient. "The rule of unanimity requires that in order for a notice of removal to be properly before the court, all defendants who have been served or otherwise properly joined in the action must either join in the removal, or file a written consent to the removal." Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 n. 3 (6th Cir. 1999). Consent must be submitted within the thirty-day period prescribed by § 1446. Mendoza, 124 F. Supp.2d at 471. Although the thirty-day consent deadline is not jurisdictional, it is nonetheless mandatory and must be enforced. See Shadley v. Miller, 733 F. Supp. 54, 55 (E.D.Mich. 1990).
Here, the Cranmers have not joined in the removal notice within the prescribed thirty-day period, as acknowledged by the removing defendants and the plaintiff alike. The defendants thus have not satisfied the rule of unanimity, and removal under § 1446 is improper.
III.
When an action is improperly removed from state court, it is appropriate to grant a motion to remand. See 28 U.S.C. § 1447(c).
Accordingly, it is ORDERED that the plaintiff's motion to remand is GRANTED.
It is further ORDERED that the defendants' motion to strike [dkt #10] is DENIED.
It is further ORDERED that this matter is hereby REMANDED to the Isabella County, Michigan Circuit Court.